Court File and Parties

Court File No.: 12-5057, 12-5058 Location: London Ontario Court of Justice

Between: Her Majesty the Queen

And: Jermaine Oates

Reasons for Decision on Sentence

Matter heard on: June 18, 2012 Reasons for decision released on: July 5, 2012

Counsel:

• Rows, for the Crown
• Harris-Bentley, for the Defence

Before: Justice J.C. George

Background

[1] Twenty-six year old Jermaine Oates was arrested on the 3rd day of January, 2012, for two charges under the Criminal Code of Canada, namely a robbery against an employee of the Bank of Montreal contrary to section 344(1), and with intent to commit an indictable offence, having his face masked contrary to section 351(2). After his arrest, Mr. Oates provided an inculpatory statement to the Police wherein he admitted also to having committed a robbery on the 1st day of January, 2012 at a local variety store. Mr. Oates did not apply for bail, and did not formally consent to a detention order. He has simply remained in custody as these matters moved through the processing court system; completing retainer and awaiting disclosure and resolution discussions.

[2] On June 18th, 2012 Mr. Oates pleaded guilty to two counts of robbery, and two counts of attempting to commit an indictable offence while having his face masked. These are representative of two separate and distinct offences, one having been committed against the owner of a variety store in the City of London, and the other at a local branch of the Bank of Montreal. Respecting the January 1st offence, Mr. Oates admits to having attended at the variety store and approaching the store clerk. During this encounter, Mr. Oates walked behind the front counter and while armed with a barbecue fork, advised the clerk that he "wanted money".

[3] The victim of this first offence attempted to stop Mr. Oates and during the ensuing struggle, suffered some injuries, including lacerations on the lip and under the chin, and a cut to his right tricep. This struggle lasted for approximately 20 seconds at which time the victim ran from the store and to a nearby residence. Mr. Oates left the store with rolled coins inside of a container and some bus tickets. As he fled he dropped the container with the coins, which were ultimately recovered. During this incident Mr. Oates was wearing black jeans, black shoes, a black hooded sweatshirt, black gloves and had on a black scarf which partially covered his face.

[4] Respecting the January 3rd offence, Mr. Oates admits to arranging for the services of a taxi, which in turn transported him to a local Bank of Montreal branch. Upon arrival Mr. Oates requested that the taxi driver remain in the parking lot, which he did. Mr. Oates was then observed pulling a scarf over his mouth, and while wearing a hooded sweater, enter the bank, which was open for business. Mr. Oates admits to approaching a teller and stating something to the effect of "give me all your money or I'll shoot the place up". The teller heeded the request and passed some cash to him. Mr. Oates interacted with another teller asking for money from her while holding his finger in a pointed position, creating the impression he held a weapon. Mr. Oates left the Bank and re-entered the taxi.

[5] Bank staff contacted the police and advised of the taxi number and offered a general description of the vehicle. As the police responded to this call, they observed the taxi while enroute, proceeding then to conduct a traffic stop and high risk arrest at gunpoint. A backpack was seized which contained a significant amount of cash, in various denominations.

[6] As of July 5, 2012, Mr. Oates has been in custody a total of 184 days, not including July 5th.

[7] Mr. Oates has what could only be described as a horrific criminal record. For a person of relative youth it now spans five pages, beginning with convictions in 2000 and the most recent being in December, 2011. It is too large to reproduce here, but it should be noted that Mr. Oates has been six times before convicted of robbery. The details are as follows:

• 2002-02-18 -- robbery -- 7 days pre-plea custody + 2 months secure custody + 1 yr probation
• 2003-03-16 -- robbery x2 & disguise with intent x2 -- 6 months custody and supervision + 1 yr probation
• 2005-02-17 -- robbery x2 -- 120 days pre-plea custody + 16 months + 2 yrs probation
• 2009-05-27 -- robbery 2 years jail + 3 yrs probation

Evidence at Sentencing Hearing / Application of Gladue, Ipeelee et al.

[8] The sentencing hearing for these matters proceeded on January 18th, 2012. A Gladue Report was prepared and presented which adequately set out Mr. Oates' life circumstances and background. Counsel for Mr. Oates argues that the principles as set out in R. v. Gladue, [1999] 1 S.C.R. 688, and R. v. Ipeelee; R. v. Ladue, 2012 SCC 13 apply, not suggesting there are reasonable alternatives to incarceration but rather that the length of any jail term must be carefully considered.

[9] As part of its guidance in sentencing Aboriginal offenders, the Supreme Court of Canada has made it abundantly clear that it would be an error to limit the application of section 718.2(e) to the circumstances of aboriginal offenders living in rural areas or on-reserve. I will say, however, that Mr. Oates' Aboriginal roots, broader community ties, and lineage are not well defined. He was not raised in what could be termed a traditional Aboriginal upbringing; indeed he has no knowledge whatsoever of his community, other than to say he believes his mother is Native and that her community may have been in Ontario or in Quebec. This makes this analysis difficult as what I am left to do is really speculate about how Mr. Oates life circumstances were impacted by those matters for which I can take judicial notice, for example the intergenerational trauma caused by Canada's residential school system, the high incidence of suicide, community dysfunction and substance abuse, and the over-representation of Aboriginal people in this Country's detention facilities.

[10] In these circumstances, I must still undertake this task to the extent possible for five reasons. First, Mr. Oates self-identifies as an Aboriginal person. I believe he would be best described as a non-status Indian. Non-status Indians are Aboriginal people as defined in our Constitution, along with First Nations (status Indians), Metis, and Inuit. Second, Mr. Oates has expressed a desire to avail himself to culturally appropriate programming when he begins serving this sentence and is no longer a remand prisoner. Third, he has previously involved himself in sweat lodges while incarcerated in the Federal penitentiary system. Fourth, the tragic circumstances and difficult upbringing experienced by Mr. Oates are typical of what is seen within Aboriginal communities and which largely explain offending behaviours. Mr. Oate's history is marked by close family deaths, inadequate parenting, the involvement of child protection agencies, significant mental health issues, learning disabilities, suspected FAS, substance abuse and community displacement. Fifth, and finally, it appears from the Gladue Report that there is a network of services and support available to Mr. Oates within the local urban First Nation community. The writer specifically recommends that Mr. Oates, after release, become involved with the counselling services offered by the N'Amerind Friendship Centre, and the residential men's healing program offered by the KiiKeeWanNiikaan Healing Lodge. I am familiar with both of these programs, and Mr. Oates would be well served to take advantage of these opportunities, and the best evidence before me is that these indeed would be available to him.

[11] In addition to the presentation of the Gladue Report, I heard testimony from Jermaine Oates respecting his time in detention at the Elgin-Middlesex Detention Center ("EMDC") and received into evidence a handwritten letter prepared by him. As indicated before, Mr. Oates was arrested on January 3rd, 2012, and has remained in custody since. He has not had a bail hearing, nor has he consented to his detention. He has been held at EMDC throughout. He testified that he has been in a cell on Unit 4-Left. He described the cell as very small, and believes it likely was built for two people only. He described how, throughout his entire stay to date, there has been three people placed in that cell. The arrangement has been such that one has had to sleep on the floor, in close proximity to the toilet. Initially, as the most recently booked inmate he was the one to sleep on the floor. As time went on, and as other cellmates were released or moved, he was then able to use the bed. Apparently, a form of seniority was used to determine who had access to a bed, and who was to sleep on the floor. He believes his time on the floor was three weeks.

[12] Mr. Oates further testified that, on average, he was only allowed "yard time" twice per week, "depending on lockdowns". He testified that the inmates were "on lockdown every weekend for sure" and quite often during the week. It was a regular occurrence. Lockdowns were explained to mean that all privileges were suspended including the usual yard time, as well as access to showers and phone calls.

[13] Mr. Oates indicated that he has taken advantage of the programming made available to remand prisoners, including attending Narcotics Anonymous meetings. Cancellation of all programming is apparently another byproduct of a lockdown, and this has been a problem throughout. His behaviour has not contributed to the decision to lockdown prisoners and otherwise there have been no discipline issues.

[14] At the sentencing hearing, the Crown did not dispute this evidence nor did it seek an adjournment to call any evidence on these points. Mr. Oates was cross-examined, the focus being on Mr. Oates' lengthy criminal record with some probing of Mr. Oates circumstances with a view, clearly, to establish that he would not have been granted bail if he had sought it.

[15] The matter was adjourned to today, July 5, 2012, for decision.

Positions on Sentence

[16] The Crown submits that the global sentence for all counts should be in the range of five to six years in the penitentiary, less credit for the time Mr. Oates has spent in pre-sentence custody. The Crown argued against allowing any enhanced credit for the time spent in custody to date essentially arguing that Mr. Oates would not have been granted bail were he to have sought it, and that he would have been denied on the basis of a previous criminal conviction. As of July 5, 2012 Mr. Oates has spent 184 days in custody; approximately six months. Were the Crown's position to be accepted, the net effect would be a further jail sentence of four and a half to five and a half years (54-66 months).

[17] The Crown high-lighted what it believes to be the aggravating features of this case. There are many, and they include the following:

• Mr. Oates lengthy, and largely related criminal record, noting specifically the fact there are six prior robbery convictions;
• although not long term or debilitating, one of the victims did sustain injures;
• that through a previous assessment, it has been determined that Mr. Oates does not suffer from a major mental illness, and although he does meet the criteria for anti-social personality, the bizarre conduct he has before exhibited and his offending is largely a result of extreme behaviours induced by his substance abuse;
• the victims here are all particularly vulnerable in that they are compelled to return to the scene of the crime on a daily basis, contributing significantly to their victimization and trauma.

[18] Crown counsel submits that any mitigating factors and the principles as set out in Gladue are adequately addressed in a five to six year jail sentence, and that were the circumstances any different, the sentence should be much longer. Further to that, the Crown provided two cases which are not binding authorities, but are illustrative of the way in which courts have treated like offenders. R. v. Dunne [2011] A.J. No. 329 (Alberta Provincial Court) involved an accused who pleaded guilty to one count of bank robbery. The accused who had two prior robbery convictions received a sentence of four years jail. In addition, the Crown provided the case of R. v. Castonguay [2010] O.J. No. 963 (Ontario Court of Justice) which involved an accused who pleaded guilty to eight counts of bank robbery, in the result receiving a six year jail sentence. Mr. Castonguay had a lengthy criminal record, but no prior robbery convictions. He had never before received a sentence in the penitentiary range. In each of Castonguay and Dunne, the accused were from backgrounds similar to Mr. Oates, marked by addictions, and mental health issues. Neither was Aboriginal.

[19] Defence counsel submits that, in addition to the time served in pre-sentence custody, Mr. Oates should receive a penitentiary sentence of three years. As well, they ask that the Court grant enhanced credit at a rate of 1:5 to 1, and that as such Mr. Oates receive credit for 276 days, approximately nine months. Were the defence position accepted, the Court would essentially be approving a penitentiary sentence of three years and nine months (45 months), that is when taking into account pre-sentence custody. An additional 36 months is sought. The defence highlights Mr. Oates troubled background and antecedents, in particular the fact that his parents met each other at a psychiatric hospital. They stress also his struggles with substances and his mental health and emotional difficulties, however brought about. Taking into account the principles as set out in Gladue, and more recently in Ipeelee and Ladue; and balancing all of the mitigating and aggravating factors, the defence contends that a sentence approaching the four year range, is a sufficient jump from previous dispositions for similar offences.

Issues

[20] What is the appropriate quantum of jail to be imposed?

[21] What credit is to be given for pre-sentence custody?

Analysis

Quantum

[22] The principles of sentencing are set out in s. 718 of the Criminal Code. It reads as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

• to denounce unlawful conduct;
• to deter the offender and other persons from committing offences;
• to separate offenders from society, where necessary;
• to assist in rehabilitating offenders;
• to provide reparations for harm done to victims or to the community; and
• to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[23] I am required, as well, to ensure that any sentence be proportionate to the gravity of the offence and degree of responsibility of the offender. Additionally, if I were to impose consecutive sentences, I must ensure that the combined sentence is not unduly long or harsh, and that the sentence is similar to sentences imposed on like offenders who have committed similar offences in similar circumstances. Without reproducing the relevant section, I will note as well that none of the statutorily mandated aggravating circumstances are present in this case.

[24] In this matter, the sentencing principles of denunciation and deterrence are paramount. Notwithstanding the evidence that some attempts have been made to access programming while in custody, and notwithstanding Mr. Oates relative youth, rehabilitation is a secondary consideration. Over the course of several years, and consistently so, Mr. Oates has been a danger to the public. As has been done before, Mr. Oates needs to be separated from society, and that is conceded by the defence. Were Mr. Oates being sentenced for one robbery only, or were his record not as significant as it is, I may have been persuaded to accept a range closer to that proposed by the defence. I, however, accept that the sentence range close to what is proposed by the Crown is appropriate. In my view it does take into account Mr. Oates troubled background, Aboriginal ancestry, and other mitigating factors.

[25] Gladue and Ipeelee, in part, stand for the proposition that sentencing Judge's should not use a formalistic approach in imposing sentence, and in coming to the conclusion that a jail sentence is appropriate for an Aboriginal person, should undertake a different analysis. Courts have consistently concluded that section 718.2(e) is remedial in nature and is Parliament's attempt to address the disproportionate number of Aboriginal people in Canada's detention facilities. It is clear upon reading the section, that it is meant to encourage Judges to use a restorative approach in sentencing an Aboriginal offender. In any case, sentencing is a fact specific process and is to take into account the unique circumstances of the offender. There is no doubt that, as disclosed in the Gladue Report, Mr. Oates is a marginalized person who has come to the point in his life where, to him, the only way to find meaning or to get by as it were, is to resort to an anti-social lifestyle. I believe he has become entrenched in a culture of criminal behaviour and is, and will continue to have a hard time finding a way out. I hope I am wrong.

Enhanced Credit

[26] The remaining issue to be determined is whether Mr. Oates will receive credit for his pre-sentence custody on a 1:1, or 1.5:1 basis.

[27] Prior to the enactment of Bill C-25, the Criminal Code permitted a court to take into account any time an offender had spent in custody prior to sentencing. The general, and almost universally observed practice was to grant an offender credit on the basis of two days for every day served. Several factors, as I understand it, led to this most logical conclusion. First, remand prisoners did not have access to the programming and services that would otherwise be available to someone serving a sentence. Second, it was then recognized that serving time before sentence significantly impacted one's ability to gain remission or become eligible for parole.

[28] Bill C-25, which amended section 719(3) of the Criminal Code, and added 719(3.1), came into force in 2010. Section 719(3) and (3.1) reads as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

[29] What "circumstances" would warrant enhanced credit? Clearly, one who has been denied bail primarily because of a previous conviction, or who has or is about to contravene a bail order, are ineligible. Neither of these bars is present.

[30] In R. v. Sabatine, 2012 ONCJ 310, at paragraph 37, Justice LeRoy discusses the purpose of the new legislation in that its clear intention was to end the practice of granting an offender enhanced credit at a 2:1 or 3:1 ratio and to end the practice of remand offenders deliberately delaying matters with a view to reducing a jail sentence. It is evident in the manner in which sentences are presently being imposed, and the conduct of criminal courts now generally, that these ends have been met. To grant Mr. Oates enhanced credit would not offend those objectives.

[31] Its additional purpose was to prevent bail violators from receiving the benefit of enhanced credit. This too is addressed in Sabatine, where in the result Justice LeRoy does not grant enhanced credit for the period commencing after Mr. Sabatine was arrested on a breach allegation, to the point he pleaded guilty to that offence. That scenario is not present here, and need not be addressed further.

[32] What of the Crown's position that Mr. Oates would have been denied bail on account of a previous conviction, were he to have addressed it, and that this should disqualify him from receiving enhanced credit? Unfortunately, at least to this point, there is no assistance from appellate courts, nor is the legislation itself entirely clear on this. It strikes me that Parliament's use of the word "detained" in 719(3.1) means just that - that one has been detained after a show cause hearing. I am, however, mindful of the fact that an inequitable result seemingly occurs when you contrast someone like Mr. Oates who simply sits in custody awaiting plea and sentence, and someone who, in circumstances similar to him, conducts a bail hearing and is subsequently detained. The analysis Justice LeRoy undertakes in Sabatine relates directly to an accused who is awaiting resolution of substantive charges and in the intervening period is arrested on a breach, and then doesn't address bail. The court in Sabatine concludes that those who fall within the group just mentioned (alleged bail violators who do not address bail) are not precluded entirely from the enhanced credit regime, indicating clearly there is no 'presumed denial' of enhanced credit for someone who declines to conduct a bail hearing.

[33] Presuming a denial of bail (and the reasons for it), which is what the Crown is asking I do, is a more direct issue in this case. Mr. Oates is not in custody as a result of a bail violation, nor has a judicial officer detained him (and stated the reasons for it in the record). I have been provided no authority which suggests it is open for me to presume a denial, and I won't.

[34] Otherwise, do the "circumstances justify" the granting of enhanced credit? I suppose it could be said that, although there is no statutory bar to Mr. Oates' receiving enhanced credit, that his record is a factor to consider in determining whether or not the circumstances justify enhanced credit. I am not persuaded by that reasoning, and will focus on what has commonly been, at least so far, the usual basis for establishing the requisite circumstances; that is lost remission, and harsh jail conditions. Although, as pointed out, there has been no appellate court guidance on this issue, and the section is not entirely clear, several sentencing courts have struggled with this very issue.

[35] Without, in any exhaustive way, reproducing the analysis of Sabatine or other trial level decisions, I am prepared to accept that the circumstances here are justified, both as it relates to the conditions at EMDC, and by virtue of the fact there has been lost remission. In determining that the circumstances do justify enhanced credit here, I make the following conclusions:

• I agree with Justice Green in R. v. Johnson 2011 ONCJ 77, [2011] O.J. No. 822, that 1:1 credit should not be applied as a general rule. That is, eventhough granting enhanced credit is an exception, that does not mean it is to be granted only in exceptional circumstances.

• I agree with Justice LeRoy in Sabatine that, given the presumption of innocence and the language of the Hansard she reviewed in that matter, "it cannot be said that Parliament intended to create an inequality between those waiting to serve their sentence and those already serving their sentence, by creating a regime that as a general rule gives enhanced credit to the latter and not the former" [para 51]. It then logically flows that the loss of remission/parole eligibility can in and of itself constitute the circumstances warranting enhanced credit.

• My previous point does not mean I believe enhanced credit is to be afforded every eligible offender. In Mr. Oates instance however, there is no evidence to suggest he deliberately delayed resolution of this matter; or that he himself contributed to lockdowns at EMDC. Were either the case, this result likely would have been different.

Conclusion

[36] For the reasons given, respecting the 184 days of pre-sentence custody, Mr. Oates will be granted credit for one and one half days for each day served. That amounts to 276 days. On count 2 (disguise with intent) on Information 12-5058 that time served will be noted. On count 2 (disguise with intent) on Information 12-5057 the time served will be noted as well. These are, obviously, concurrent with each other.

[37] Respecting Counts 1 (robbery) on each of the above noted Informations, in addition to the time served which will be noted (again credited at 276 days), I impose a further jail sentence of 48 months to be served concurrently.

[38] I recognize this as being a substantial step up from his last disposition on a related offence; it effectively being a sentence of 4 years, and 9 months. It is, however, appropriate, and takes into account the aggravating features, and the fact that I am considering two separate events having occurred in close proximity to each other. These, as well, have been balanced with the principles that apply to the sentencing of Aboriginal offenders, and does, in my view, moderate what the sentence otherwise could have been.

[39] An order under section 109 will be made, which will prohibit Mr. Oates from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for his lifetime.

[40] Mr. Oates, as well, is required to provide a sample of his DNA suitable for analysis and banking.

Released: July 5, 2012 Justice J.C. George